On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Defendant pled guilty to an accusation charging him with sexual assault, a second degree crime. N.J.S.A. 2C:14-2(b). The act was a touching of his six-year-old stepdaughter. The Adult Diagnostic and Treatment Center (ADTC) reported that defendant falls within the purview of N.J.S.A. 2C:47-3 in that his conduct was characterized by a pattern of repetitive, compulsive behavior. Its recommendation was for a sentence of probation with the requirement that he receive outpatient psychological treatment. The sentence as provided in the judgment was "to the Adult Diagnostic and Treatment Center at Avenel for an indeterminate term not to exceed ten years on the Accusation" and required defendant to pay a $25 penalty to the Violent Crimes Compensation Board. Defendant appeals on the sole ground that the sentence is manifestly excessive.
At the time of sentencing the judge addressed the following remarks to defendant:
As you know, the efforts being made here is an effort to be of benefit to you. Everyone suffers by the situation present.
We can cure that. I think it will be a relief for us all.
So, the Court is obliged to accept the diagnosis as made establishing that the defendant is a sex offender. The essential question is what -- whether it should be in-house treatment or non-resident. I think that until the defendant has had the benefit of the therapy at the Adult Diagnostic Center, he's a threat to himself and to others and in order to avoid that, the disposition I make is that the defendant be committed to the Adult Diagnostic and Treatment Center at Avenel. The period cannot exceed ten years.
I think, practically speaking, it would be a good bit less than that but it is essentially an indeterminate term to be treated and released when in their discretion they think you're taken care of, so to speak.
From these remarks and from the wording of the judgment he entered, it is apparent that the judge was under the impression that if he believed a custodial sentence was warranted, he was compelled to impose a sentence to ADTC for an indeterminate term not to exceed the maximum term for a second degree offense. That would have been the correct sentence under the former Sex Offender Act, N.J.S.A. 2A:164-6. State v. Andrews, 105 N.J. Super. 62, 64-65 (App.Div.1969), remanded on other grounds 56 N.J. 372 (1970). It is no longer correct under the Code of Criminal Justice.
N.J.S.A. 2C:47-3 presents the following alternatives to a sentencing judge who has received a report from ADTC that a defendant's conduct was characterized by a pattern of repetitive, compulsive behavior:
a. If the examination reveals that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, the court may, upon the recommendation of the Adult Diagnostic and Treatment Center, sentence the offender to the Center for a program of specialized treatment for his mental condition; provided, however, that no such person may be sentenced to the Adult Diagnostic and Treatment Center in the absence of such a finding that his conduct was characterized by a pattern of repetitive, compulsive behavior.
b. In the event that the court shall sentence a person as provided herein, the court shall notwithstanding set the sentence in accordance ...